123 Wash. 274 | Wash. | 1923
These actions were brought, one by J. C. Harris, and the other by Lloyd Harris, by his guardian ad litem, J. C. Harris, to recover for damages growing out of a grade crossing accident. The two cases were tried together. At the conclusion of the evidence on behalf of the plaintiffs, defendant’s motion for a nonsuit in each case was granted. Plaintiffs have appealed and present the two causes together.
The rights of the parties must be disposed of by the testimony of the appellants, J. C. Harris and his son Lloyd, the latter at the time of the accident being between fifteen and sixteen years of age. They were the only witnesses who testified as to the manner in which the accident happened, and from which the trial court concluded, as a matter of law, that they were guilty of contributory negligence which barred them from a right of recovery.'
The accident occurred a short distance from Finley station on respondent’s line of railroad. J. C. Harris testified that he and his children visited a neighbor named Moffett, arriving about one o’clock. Returning, they left for their home at 4 to 4:30 o ’clock in an automobile. The curtains of the automobile were up, but they contained openings or windows. He was driving, Lloyd was to his right on the front seat, and two or three smaller children were on the rear seat. Mof-fett’s home was about one-fourth of a mile from the
“Q. After you crossed the crossing and were going down that 200 yards parallel with the railroad you were on the wrong side of the car to see it out through the side curtains? A. The fact of the matter is I did not look to see whether I could see out of the curtains or not. Q. As a matter of fact, if you had turned and looked out through the hole or opening in the rear of the car you could have seen it all right ? Couldn’t you ?*277 A. Had it been in the direct direction; yes, sir. Q. If it had been almost anywhere from the depot to the crossing where it struck you? A.' It seems to me that I could. ... I just didn’t think anything about the train, because I thought the train had gone by. I know we called it the four o’clock train but I did not know exactly what time it came. I have been at Finley frequently and lived in sight of the railroad tracks. I was aware that it was a much traveled railway and that at least two passenger trains and a good many freight trains ran over it every day. Q. And you knew it was about time for that passenger train? A. Yes, sir.”
He said the first that he knew of the train was just as they arrived at the second crossing, when Lloyd yelled: “There is the train.” They “were just rolling onto the railroad, you might say.” He “looked, there was a screech of the whistle, and we were hit.”
Lloyd’s testimony, though not so much in detail, was similar to that given by his father., He said that, on coming out of the Moffett’s house, he looked and did not see any train. After that he did not look for and did not see any train until just at the instant of the collision.
The testimony shows that at that time there was a slight breeze and some falling of snow, but that together they caused no disturbance of visibility except at a considerable distance. The accident occurred on February 20.
The contributory negligence of the appellants was so apparent, it appears to us, that there is no necessity to discuss the evidence, nor to discuss the applicable law, in detail. Appellants seem to have done nothing whatever to protect themselves, but, on the contrary, were positively imprudent and careless. The situation is controlled by our cases of Beckimth v. Spokane
Judgment of nonsuit was properly granted in each case.
Affirmed.
